EXCLUSIVE: Apartment Construction Controversy Deepens

A car repair garage claims falling wet concrete damaged its clients’ luxury vehicles. A now shuttered gourmet sandwich shop says the very construction workers responsible for damage to its building would regularly clean up mortar dust and patch up cracks in its walls.

And despite a Montgomery County official’s determination that its buildings are structurally safe, the landlord next to the Bainbridge Bethesda apartment project has moved two popular tenants out and will likely move two more out in the coming months.

As crews work to finish the 17-story, 200-unit Bainbridge Bethesda apartment in Woodmont Triangle, the controversy surrounding the construction of the building has only deepened.

Greenhill Capital, the company that owns 4910 and 4912 St Elmo Ave. and 4905 and 4909 Fairmont Ave., claims shoddy foundation work from developer Bainbridge, its contractor and sub-contractor has led to permanent structural damage that means it must kick out its tenants for safety reasons.

Bainbridge, Turner Construction and the Schnabel Foundation Company deny the bulk of the landlord’s claims.

Green Tomato LLC, the company that holds ownership of the St Elmo Avenue storefronts for Greenhill, sued Bainbridge and the contractors in November along with tenant BCC Automotive, Inc. A representative from Green Tomato said the luxury car repair company and the Red Tomato Cafe next door will likely have to leave their spaces by March 1 because of continuing safety issues.

Meanwhile, Fresh Grill — the Fairmont Avenue restaurant that closed in 2012 because of alleged structural damage on the other side of the block — is suing the developer, construction company and landlord.

Its owners say the entire saga put the restaurant out of business. It’s seeking at least $1.2 million in damages in a separate lawsuit filed in December.

Sheeting, Shoring And An Inauspicious Start

Construction on the Bainbridge Bethesda, then known as the “Monty,” started in August 2011. It was supposed to be one of the very first new residential towers completed in a new-look, reenergized Woodmont Triangle.

Before work on the apartment’s sheeting and shoring system began, there were signs that damage to the building next door was inevitable, according to separate lawsuits filed by Fresh Grill and White Flint Express Realty Group, the Greenhill LLC that owns 4905 and 4909 Fairmont Ave.

According to Fresh Grill’s suit, Bainbridge’s structural engineer consultant “confirmed that it is ‘impossible’ to excavate next to buildings such as the buildings on the White Flint Property without damaging same, and further opined that ‘it is impossible to excavate next to a light building such as 4909 and 4905 Fairmont Avenue and not induce both lateral and vertical movement to it, especially if the foundation is at a much higher elevation than the excavation.’”

Sub-contractor Schnabel said the expected movements in the sheeting and shoring system were within a safe range and would not pose a safety hazard.

Bainbridge and White Flint Express entered into an easement agreement to allow construction crews to perform all necessary tie-back and bracket pile work and operate a crane over its building. That easement agreement was the subject of the November ruling in which a judge ruled in favor of the landlord.

Fresh Grill went on to claim that Bainbridge, Turner and Schnabel disregarded their own plans for laying the apartment’s foundation.

It claimed the developer and construction company installed piles holding up the sheeting and shoring with a pile driver, instead of drilling holes.

Both Fresh Grill and White Flint Express claimed that meant severe vibrations that caused cracks and the wall of Fresh Grill to sink into the ground by more than the expected amount of about two inches laterally and one inch vertically.

By December 2011, Fresh Grill said it had notified its landlord of movement in its building and cracks to its rear walls and the entrance door. On Dec. 5, 2011, Fresh Grill claimed a “loud boom” from the construction next door was heard and felt in the restaurant, sending customers hurrying out of the shop.

Fresh Grill immediately closed the restaurant and for the next couple days, it said construction workers “spent hours cleaning up the broken tile and mortar dust from the entire restaurant,” according to court documents.

Fresh Grill, Dance Studio Finally Forced Out, But By Who?

Fresh Grill opened soon after the December incident, but in its suit, it said the problems continued. According to court documents, construction workers on the job who frequently ate at the restaurant often told its manager and employees about the damage caused by their work.

Repairs and fixes to the building’s cracks, front door and bathroom door continued until Feb. 21, 2012, when the restaurant was ordered to evacuate the property.

Two days later, Montgomery County Department of Permitting Services inspector Chi Wong determined it was safe to occupy the building. On Feb. 24, Fresh Grill reopened. On Feb. 26, Fresh Grill claims the front door would not lock and was later adjusted.

On Feb. 27, Bainbridge, through its structural engineer consultant KCE, agreed that Fresh Grill and the next door Dansez!Dansez! dance studio should be evacuated due to construction damage.

On March 7, the county’s Department of Permitting Services stopped the construction work on the apartment, later approving a plan from the construction company to prevent similar damage.

On April 10, Fresh Grill said DPS didn’t have enough info to allow it to reopen. The building was boarded up and surrounded by a chained link fence.

Fresh Grill also claimed that on Aug. 8, 2012, Wong said construction was allowed to resume and told the restaurant that DPS “never prevented Fresh Grill from occupying the White Flint Property.”

It is suing the developer, construction company and White Flint Express — seeking damages from whichever party is held responsible for its closing.

Dansez!Dansez! quickly found a new location on Norfolk Avenue, not far from the boarded and chained up studio that still sits empty.

Focus Shifts To St Elmo Avenue

Apartment buildings are starting to sprout up around Woodmont Triangle, the older commercial area of town known for its bars, locally owned shops and ethnic eateries. The Gallery Bethesda (a BethesdaNow.com advertiser) topped out construction last year and is pre-leasing apartments.

Across Fairmont Avenue from Bainbridge Bethesda, developer JBG has started construction on its 17-story, 244-unit 7770 Norfolk Avenue building.

Bainbridge likely won’t be the first of the new apartments completed in Woodmont Triangle, but construction has steadily progressed since the 2012 stoppage. Bricks and windows now cover much of the building’s exterior, which rises high above the mostly one- and two-story buildings of the neighborhood.

But according to Greenhill, still more damage was done to its properties on St Elmo Avenue, which house BCC Automotive and the Red Tomato Cafe.

The Green Tomato suit alleges construction debris and wet concrete fell on the BMWs, Mercedes and other expensive cars the auto repair shop specializes in. Turner Construction, in its initial response to the lawsuit, admitted that wet concrete did fall onto the BCC Automotive property, but only in isolated instances.

The New York-based construction company claimed that it has made serious efforts at an agreement with the landlord with no luck. Turner said the auto repair shop, its workers and customers are in no danger from the construction next door.

It also claimed that since the construction rose above street level in April 2013, crews have used a concrete pump on the ground to limit the use of a crane, installed mesh sheets to contain debris and built a “catch deck.”

Finally, the company said it agreed with Green Tomato LLC to stop all exterior work on the surfaces of its building that abut the property line.

It apparently won’t be enough to prevent BCC Automotive and the Red Tomato Cafe from facing a similar fate suffered by Fresh Grill. The representative from Green Tomato spoke on the condition of anonymity because of the ongoing lawsuit, but said those two businesses are in danger because of Turner’s construction practices.

A scheduling hearing in the case is set for Feb. 5 and a pretrial hearing is set for June. By then, it might be too late.

In court documents, Bainbridge said construction will likely be done by this summer.